Bonds: Any formal claim for one benefit can raise an informal claim for another (applies to claims filed before Mar. 24, 2015)

Bonds v. McDonough, 35 Vet.App. 355 (2022)

HELD: A formal claim for compensation under 38 U.S.C. § 1151 CAN ALSO SERVE AS A CLAIM FOR COMPENSATION UNDER 38 u.s.c. § 1110 under the regulation in effect prior to March 24, 2015.

Summary: Veteran filed a VA Form 21-526 explicitly requesting service connection under 38 U.S.C. § 1151 for a leg amputation that he claimed was caused by VA’s inadequate care of his wound. He argued that he was diabetic and should have received extra care. The record showed that he was diagnosed with diabetes (a listed chronic condition under 38 C.F.R. § 3.309(a)) within a year of separation from service.

The Court held that VA has a duty to liberally construe claim forms - and because the veteran’s claim under § 1151 was received when the regulations allowed for informal claims, VA was required to identify all explicitly- and implicitly-raised claims. Even if a request for benefits under § 1151 cannot encompass a claim for § 1110 benefits, it can raise a separate, informal claim for § 1110 benefits.

NOVA: Pre-2021 version of DC 5055 applies to partial knee replacements

NOVA v. Secretary of VA, 48 F.4th 1307 (Fed. Cir. 2022)

HELD: DC 5055 did not unambiguously exclude partial knee replacements.

Summary: In Hudgens v. McDonald, VA denied a 100% rating for a veteran’s partial knee replacement because it determined that DC 5055 only applied to TOTAL knee replacements. The CAVC affirmed – and Mr. Hudgens appealed to the Federal Circuit. Less than two weeks before the Secretary’s brief was due, VA published its “Knee Replacement Guidance,” which said it was VA’s “long-standing interpretation” of the regulations that the 100% rating only applied to total knee replacements – and that an “explanatory note” saying this would be added to 38 CFR 4.71a. Despite this (or maybe because of this?), the Federal Circuit reversed the CAVC’s decision and held that DC 5055 doesn’t unambiguously exclude partial knee replacements.

Four years later, VA amended DC 5055 – following notice and comment rulemaking – to clarify the intent that this DC only applies to total knee replacements. The change became effective on Feb. 7, 2021.

NOVA petitioned the Federal Circuit to invalidate the new rule. The Court first determined that the GUIDANCE was “final agency action” that could be reviewed under 38 USC § 502 – and determined that it was arbitrary & capricious – because it inserted an explanatory note into DC 5055 (the regulation) WITHOUT going through notice-and-comment rulemaking. VA promulgated DC 5055 in 1978 following such rulemaking. Therefore, VA can’t amend DC 5055 without going through that same process.

The Federal Circuit refused to defer to the Agency’s interpretation because it was inconsistent with numerous Board decisions that rated partial knee replacements under DC 5055.

Advocacy note: This case is a good example of using Board decisions for their persuasive value.

Skaar: Only claimants who have appealed a Board decision or are still able to can be part of a proposed class

Skaar v. McDonough, 48 F.4th 1323 (Fed. Cir. 2022)

HELD: In order to participate as a member of a class action at the CAVC, the proposed class member must have either appealed a Board decision or must be able to appeal a Board decision.

Summary: A group of veterans who were exposed to radiation at Palomares challenged the evidence used for dose estimates. The CAVC certified a class that was comprised of (1) present claimants (those who had appealed or could still appeal a Board denial); (2) present-future claimants (those who had a claim still pending before the RO or Board); and (3) future-future claimants (those who had not yet filed a claim with the RO). The Secretary appealed to the Federal Circuit, which held that only claimants who have timely appealed a Board decision to the Court or who were still able to appeal can be part of the proposed class. The CAVC’s jurisdiction is defined by 38 U.S.C. § 7252 only. There is no supplemental jurisdiction and class certification doesn’t create jurisdiction.

Stover: Board must define terms in order for the Court to review its decisions

Stover v. McDonough, 35 Vet.App. 394 (2022)

HELD: Board must define “near” before the court can review its decision that a veteran was not “on or near the perimeter of the base.” And the board must apply the m21-1 when it adopts it as a rule in its decision.

Summary: Thailand Veteran who served at Takhli Royal Thai Air Force Base claimed service connection based on herbicide exposure, stating that he worked 100 years from the base perimeter and slept near the perimeter. The Board determined that he was not “near the perimeter” and thus could not be found to have been exposed to herbicides.

The Court held that because the Board adopted a provision of the M21-1 regarding herbicide exposure for Thailand veterans, it was bound by that provision. However, because the Board did not define or explain “near the perimeter,” the Court remanded for the Board to do so. The Court rejected the Secretary’s proposed definition - that “near the perimeter” means “ON the perimeter” - not because the definition is ridiculous, but because it was not the Board’s definition.

Advocacy note: The PACT Act created a presumption of herbicide exposure for these Thailand veterans - but this case is still useful, for effective date purposes, for those who had claims/appeals pending prior to the PACT Act.

Long: Secondary service connection and extraschedular evaluations do not require a showing of direct causation

Long v. McDonough, 38 F4th 1063 (2022)

HELD: Neither 38 C.F.R. § 3.310(a) nor § 3.321(b)(1) require a showing of direct causation between the secondary symptoms and the primary service-connected disabilities.

Summary: Veteran was service connected for hearing loss. He testified that his hearing aids cause ear pain. The CAVC held that the Board did not need to consider ear pain in its extraschedular analysis because the pain was caused by the hearing aids, not the hearing loss. The Federal Circuit disagreed and found that the CAVC did not properly analyze the veteran’s ear pain under the extraschedular analysis.

The Court reiterated the Thun factors to state that “extra-schedular consideration is available to a veteran when (1) the schedular rating criteria are inadequate to describe the severity and symptoms of his disability; (2) the disability is exceptional or unusual, such as because of marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of justice.” The Court held that the CAVC “erred in holding that direct causation between a secondary condition and an original condition is required for extra-schedular consideration of the secondary condition.”

Bowling: VA's definition of insanity for character-of-discharge purposes is not unconstitutionally vague

Bowling v. McDonough, 38 F.4th 1051 (Fed. Cir. 2022)

HELD: The veterans in this case did not show that 38 C.F.R. § 3.354(a) is unconstitutionally vague.

Summary: 38 C.F.R. § 3.354(a) says: “An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.”

The Federal Circuit rejected the argument that the regulation was vague under the Due Process clause because the regulation refers to “objectively describable conduct,” “diseases,” and “causation.” The Court further held that “even if the Board could not grant appellants their requested relief of declaring § 3.354(a) unconstitutionally vague, presenting such evidence to the Board would not be futile.”

Frantzis: There is no statutory right to have the same Board member who presided over a hearing decide the appeal

Frantzis v. McDonough, 35 Vet.App. 14 (2022)

HELD: under the ama, A VETERAN DOES NOT HAVE THE RIGHT TO HAVE THE SAME BOARD MEMBER WHO CONDUCTED THE HEARING DECIDE THE APPEAL.

Summary: In June 2018, veteran opts into the AMA via the RAMP. In May 2019, the veteran and his wife testify before a Veterans Law Judge. In September 2019, a DIFFERENT Veterans Law Judge issues a decision. This VLJ acknowledges the hearing testimony, but finds the medical evidence is more probative. 

At the CAVC, the veteran argues that 38 USC § 7102 requires the VLJ who held hearing to issue decision. The Secretary argues that 38 USC § 7107 controls - and this statute does not say that the Board member who conducted the hearing must write the decision. The CAVC agreed with the Secretary, noting that Congress removed the requirement that the Board member who conducts the hearing must issue the decision.

The dissent includes great language regarding the principle of fair process and the pro-veteran canon. This case was appealed to the Federal Circuit on August 28, 2022.

George: VA's erroneous interpretation of a statute is not CUE

George v. McDonough, 142 S.Ct. 1953 (2022)

HELD: VA’S FAILURE TO PROPERLY APPLY THE PRESUMPTION OF SOUNDNESS FOR DECADES WAS NOT CLEAR AND UNMISTAKABLE ERROR - BECAUSE THE FEDERAL CIRCUIT’S DECISION THAT INVALIDATED VA’S ERRONEOUS INTERPRETATION WAS A CHANGE IN THE INTERPRETATION OF THE LAW.

Summary: In 1977, the Board denied service connection for schizophrenia - finding that it pre-existed service. The Board made no finding as to whether the condition was also aggravated by service, as required by 38 USC § 1111. In 2003, VA amended its regulation to include the aggravation prong of the presumption of soundness. In 2004, the Federal Circuit held in Wagner v. Shinseki, that 38 USC § 1111 plainly includes an aggravation prong - meaning that the statute has always required VA to prove that a condition BOTH pre-existed service AND was NOT aggravated by service in order to rebut the presumption of soundness. In 2014, the veteran filed a motion to revise the 1977 decision on the basis of clear and unmistakable error (CUE) - arguing that VA misapplied the law.

The case goes all the way up to the Supreme Court, which determined that CUE did not include changes in law or changes in interpretation of the law - and that the Federal Circuit’s decision in Wagner was a change in the interpretation of the law.

Walleman: Separate ratings for knees under pre-2021 versions of DC 5259 and 5257 are allowed

Walleman v. McDonough, 35 Vet.App. 295 (2022)

HELD: The rule against pyramiding does not categorically preclude separate ratings under DCs 5257 and 5259 – even if instability is a residual of a meniscectomy – as long as there are other residuals that could warrant a separate rating under DC 5259. 

Summary: Veteran sought an increased rating for his left knee disability. The Board assigned 10% for DC 5260 (limited flexion) and 10% for DC 5259 (residuals of meniscectomy – “swelling, popping, locking, stiffness, grating, and clicking”). The Board acknowledged “slight instability,” but denied a separate rating under DC 5257, citing the rule against pyramiding.

The Court rejected the Board’s rationale. DC 5257 provides for 10%, 20%, and 30% ratings for recurrent subluxation or lateral instability that is mild, moderate, or severe. DC 5259 is for “cartilage, semilunar, removal of, symptomatic.” This DC does not define “symptomatic” or identify or exclude symptoms. And DC 5257 refers to only one symptom - instability. The Court determined that the appropriate way to assess these cases is to look at whether any of the symptoms are overlapping and whether there is a “common manifestation” (i.e., symptom) that would be improper to compensate more than once. This case illustrates a tug-of-war between two VA rating principles: the rule against pyramiding (38 CFR § 4.14) and the duty to maximize benefits (38 CFR § 4.25(b)).

Advocacy note: This case only applies to the pre-2021 version of these diagnostic codes.

Aviles-Rivera: NAS Updates are evidence subject to AMA evidentiary limits

Aviles-Rivera v. McDonough, 35 Vet.App. 268 (2022)

HELD: NAS updates that were created outside the AMA evidentiary window are evidence and cannot be deemed to be constructively in the record.

Summary: In April 2017, the Board remanded the Vietnam veteran’s appeal for service connection for hypertension for an examiner to consider the NAS Updates. The examiner provided an opinion in October 2017. In June 2018, the veteran opted into the AMA through the RAMP pilot program. In September 2018, VA issued a Higher Level Review decision. In November 2018, the NAS Update links hypertension to herbicide exposure. The veteran appealed to the Board - selecting the “Direct Review” option. In April 2019, the Board continued to deny service connection, without considering the NAS Update.

On appeal to the CAVC, the veteran argued that the Board improperly ignored the 2018 NAS Update and that the examiner’s opinion was inadequate because it was rendered without the benefit of that information. The CAVC rejected these arguments, finding that because the veteran opted into the AMA and chose the “Direct Review” docket at the Board, he “agreed” that the Board would not consider any evidence after the September 2018 decision.

The Court found that the 2017 Board remand to ”consider NAS Updates” did not require VA to delay the appeal while waiting for any future updates - and also held that the AMA evidentiary review limits do not violate the principles of fair process.

This case was appealed to the Federal Circuit on July 22, 2022.

Rivera-Colon: Board's failure to define "symptoms" frustrates judicial review

Rivera-Colon v. McDonough, 35 Vet.App. 221 (2022)

HELD: BECAUSE VA HASN’T DEFINED THE USUAL “SYMPTOMS” OF GASTRITIS, THE COURT CAN’T REVIEW THE BOARD’S DENIAL OF A HIGHER RATING.

Summary: Veteran sought a rating higher than 10% for gastritis. The regulation provides 10% for “with small nodule lesions, and symptoms”; 30% for “multiple small eroded or ulcerated areas, and symptoms”; and 60% for “severe hemorrhages, or large ulcerated or eroded areas.” 38 C.F.R. § 4.114, DC 7307. VA exams showed complaints of multiple symptoms, such as pain, nausea, vomiting (at least 4x/year, lasting 9 days per episode); vomiting blood 3x/year; 22-pound weight loss; incapacitating episodes; had to stop working because of nausea and vomiting. Board denied a rating higher than 10% under several DCs, but didn’t address extraschedular. Instead, the denial was based on the absence of evidence of “multiple small eroded or ulcerated areas.”

The Court determined that, “Judicial review is frustrated because a critical term is undefined” - and reminded VA that it must define the terms in its regulations, citing Ortiz-Valles v. McDonald, Ray v. Wilkie, Johnson v. Shulkin, Cantrell v. Shulkin. “Symptoms” in the DC is not so broad as to encompass all possible symptoms – so an extraschedular rating is possible. The Board didn’t “explain how it determined what the usual symptoms of gastritis are.”

Slaughter: CAVC's prejudicial error analysis was too rigid; "combined nerve injuries" refers to service-connected nerves only

Slaughter v. McDonald, 29 F.4th 1351 (Fed. Circ. 2022)

HELD: The burden of proving prejudicial error is not an “onerous” one and the CAVC needs to look at the circumstances of the case to determine prejudice. “combined nerve injuries” under 38 C.F.R. § 4.124A refers to service-connected conditions only.

Summary: Veteran was service connected for ulnar nerve under 38 C.F.R. § 4.124, DC 8516. He later developed median nerve issues. VA examiner couldn’t distinguish symptoms related to the individual nerves - and VA increased his rating to 40% based on the symptoms of both nerve issues. Veteran argued for a higher rating under DC 8512 for combination of nerve injuries based on a note in § 4.124a regarding “combined nerve injuries.”

The Federal Circuit held that the phrase “combined nerve injuries” in the note unambiguously referred to service-connected conditions, relying on 38 C.F.R. § 4.1 and VA’s treatment of service-connected and nonservice-connected conditions in other regulations.

Regarding the CAVC’S prejudicial error analysis, the Federal Circuit found that the CAVC “applied too rigid of a prejudicial error standard and placed too heavy a burden on Mr. Slaughter to show prejudice.” While the burden is on the claimant, it’s not an “onerous” one - and the Court should look “to the circumstances of the case to see if the alleged error was harmful.” Prejudice can be shown if the error affected or could have affected the outcome.

Martinez-Bodon: Formal DSM-5 diagnosis required in order to be compensated for mental health disability

Martinez-Bodon v. McDonough, 28 F.4th 1241 (Fed. Cir. 2022)

HELD: VA REGULATIONS require a formal DSM-5 diagnosis in order to be compensated for a mental health disability.

Summary: Veteran had psychiatric symptoms, but no formal diagnosis. The Board denied service connection. Veteran argued that he didn’t need a diagnosis because Saunders v. Wilkie held that “pain that reaches the level of ‘functional impairment of earning capacity’ could constitute a ‘disability’ under 38 U.S.C. § 1110.”

The Court rejected this argument because the question in Saunders ”was whether conditions not on the rating schedule may still be considered for service connection purposes under § 1110.” VA regulations - 38 C.F.R. §§ 4.125, 4.130 - provide specific ratings for mental health conditions – so Saunders doesn’t apply. These regulations require a mental health diagnosis that conforms to the DSM-5.

Advocacy note: Make sure the record contains a formal DSM-5 diagnosis. Even if there are conflicting diagnoses. If the veteran doesn’t have a DSM-5 diagnosis, suggest that the veteran see a different practitioner. (You see 5 different psychologists, you’ll get 5 different diagnoses.)

Gumpenberger: Appeal for TDIU doesn't necessarily include appeal for higher rating

Gumpenberger v. McDonough, 35 Vet.App. 195 (2022)

HELD: Because entitlement to TDIU and a higher rating involve different considerations, an NOD that expressly appeals for TDIU does not encompass an appeal of the TBI rating.

SUMMARY: In May 2013, VA granted a 70% rating for TBI and denied service connection for a psychiatric condition and TDIU. The following month, the veteran appealed - identifying service connection for the psychiatric condition and TDIU only. The RO continued to deny both in a Statement of the Case that the veteran appealed with a timely VA Form 9. In December 2015, he withdrew his appeal for service connection for a psychiatric disorder - so the only remaining appeal issue was entitlement to TDIU.

In July 2016, VA reviewed the TBI rating on its own - and granted 100%. The veteran’s attorney sought attorney fees on that 100% award. VA denied fees because the agency re-processed the TBI claim in accordance with the Secretary’s authority to award equitable relief – and the resulting favorable decision was not due to an appeal.

On appeal to the Board, the attorney argued that the withdrawal of the psychiatric claim was “conditioned on the grant of TDIU” – and that the “avenue to 100% is immaterial.” The Board continued to deny fees because the 2013 NOD was for TDIU and the psychiatric condition only – and the 100% rating for TBI was the result of VA’s own internal review.

On appeal to the CAVC, the attorney argued that (1) relevant statutes don’t require specificity in an NOD (38 USC §§ 5904(c)(1), 7105(a)); (2) VA regulation requiring identification of specific issue is inconsistent with statutes; and (3) TDIU & 100% are “different means to the same results.”

The Court disagreed based on the statutory language (7105(a)) and surrounding provisions, specifically § 7105(d) that says a Statement of the Case must provide a summary of evidence with the issue or issues “with which disagreement has been expressed.” VA’s regulation, 38 CFR § 20.201, is a valid interpretation of the statute. Further, the issues of entitlement to an increased rating for TBI and TDIU have different requirements. While an appeal for a higher rating can include entitlement to TDIU, “teh reverse is not necessarily true.”

Appealed to the Federal Circuit on June 9, 2022.

Advocacy note: In order to preserve the appropriate effective date for a higher rating, to include TDIU, you must appeal all relevant issues that could potentially impact employability.

Stern: Reversal is appropriate when Board's analysis of rating reduction is not complete.

Stern v. McDonough, docket no. 18-4425 (Apr. 20, 2021)

HELD: When the Board fails to conduct the complete analysis required by Brown v. Brown, 5 Vet.App. 413, 421 (1995), in evaluating the propriety of a rating reduction – even one that has been in effect for less than five years – the appropriate remedy is to reverse the Board’s decision and order the rating reinstated.

SUMMARY: Veteran was granted service connection for bilateral upper and lower extremity peripheral neuropathy was various ratings in 2007. He filed a request for increases in 2008 and the RO denied the increases. At VA’s request, he underwent an examination in 2010, and the RO proposed to reduce all his ratings to 10%. He challenged the proposed reductions, but the RO reduced the ratings in 2011. He appealed to the Board.

The Board first noted that his ratings had been in effect for less than five years, so he was not entitled to the protections of 38 C.F.R. § 3.344(a). The Board noted that in any reduction case, VA must determine whether the reduction was properly based on a finding that there was actual improvement and that such improvement would be maintained under the ordinary conditions of life and work. The Board then determined that the evidence showed actual improvement and concluded that the reductions were proper.

The appellant argued – and the Court agreed – that the Board failed to address the second part of the analysis when it “failed to consider the effects of his disabilities on the ordinary conditions of life and work,” in light of his statements regarding his ability to work. The Secretary argued that this is a reasons or bases error and that remand is appropriate, not reversal.

The Court first discussed VA regulations regarding reducing ratings, including the heightened procedural requirements of 38 C.F.R. § 3.344(a), which applies to ratings that have been in effect for five years or more. The Court noted that in Brown, it had held that other VA regulations – specifically 38 C.F.R. §§ 4.2 and 4.10 – say that VA cannot reduce any rating without first determining that “improvement in a disability actually occurred” and “that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” In rating reduction cases, “the burden is on the Board ‘to establish, by a preponderance of the evidence … that a rating reduction was warranted.’”

In cases where VA has failed to comply with the required procedures for reducing a rating that has been in effect for more than five years, the Court has routinely reversed the improper rating reductions and ordered VA to reinstate the prior ratings. On the other hand, the Court has remanded other rating reduction cases for reasons-or-bases errors where the Board failed to address evidence or discuss the relevant regulations or where the Court questioned its own jurisdiction to address the matter. The Court also found no prejudice in a rating reduction that did not fully comply with the regulatory procedures the Board made findings to support its decision that the reduction was proper.

In this case, the Court found that reversal was the appropriate remedy – even though the heightened procedural requirements of 38 C.F.R. § 3.344(a) did not apply. The Court held that “the Board’s failure entirely to address, as required by Brown, whether the improvement in the disability reflects an improvement in the ability function under the ordinary conditions of life and work, also requires reversal of a rating reduction.” The Court stated that even though § 3.344(a) does not apply to this rating reduction, “Brown established that two factual findings must be made for a valid reduction of a non-protected disability rating: (1) actual improvement in the disability and (2) that improvement reflects ‘improvement in the ... ability to function under the ordinary conditions of life and work.’”

The Court declined to hold that all Board errors in reduction cases require reversal and reinstatement, noting that “the Court has in some circumstances concluded that a remedy other than reversal and reinstatement is appropriate even after identifying Board error.”

Hatfield: Informed consent, 38 U.S.C. § 1151

Hatfield v. McDonough, docket no. 19-7165 (Mar. 8, 2021)

HELD: In McNair v. Shinseki, 25 Vet.App. 98, 100 (2011), the Court held that “deviations from the informed consent requirements of 38 C.F.R. § 17.32 are minor and immaterial if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk.” The issue addressed by the Court here was whether this exception to the informed-consent requirement applies where VA obtains no consent. The Court held that “McNair applies only when VA has attempted to obtain informed consent but obtains consent that contains some defect.” It does not apply where VA does not obtain any consent at all. The Court reversed the Board’s decision and granted benefits.

SUMMARY: Veteran was treated for Hodgkin’s disease with radiation therapy at VA facility. There was no evidence of informed consent in his medical records. The radiation eliminated the Hodgkin’s disease, but caused severe pulmonary complications that resulted in his death. His wife applied for DIC and death pension benefits under 38 U.S.C. § 1151 and was repeatedly denied. The present appeal arises from a 2010 request to reopen. After eight Board decisions and two appeals to the Court, the Court finally ended her “long march through the VA system.”

The Court explained the requirements for establishing service connection under § 1151 (additional, qualifying disability; actual causation; proximate causation – carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or event not reasonably foreseeable.” In this case, there was no dispute that there was an additional, qualifying disability (pulmonary complications) that were actually caused by VA treatment (radiation). The only disputed element was regarding proximate cause.

To establish proximate cause (carelessness, etc.), claimant must show either (1) VA failed to exercise the degree of care expected of a reasonable health care provider OR (2) VA provided the treatment without obtaining informed consent. 38 C.F.R. § 3.361(d)(1). Informed consent must meet the requirements of 38 C.F.R. § 17.32 – but “minor deviations” that are “immaterial under the circumstances of the case” will not defeat a finding of informed consent.” 38 C.F.R. § 3.361(d)(1)(ii).

In this case, the Board determined that informed consent can be established EITHER (1) through evidence of a document signed by the patient or representative showing that the practitioner explained the procedure, its benefits, and risks OR (2) by showing that a reasonable person would have proceeding with the treatment even if informed of the risks. This is a misstatement of the McNair rule – and is contrary to the plain language of § 3.361 and 17.32, which do not contemplate the “reasonable person” alternative exception to establishing informed consent where there is no evidence of any consent at all.

McNair’s “reasonable person” alternative provides an exception to defective consent – when the defect is a “minor deviation” from 17.32’s requirements. It does not provide an alternative to a finding of informed consent. In McNair, there was evidence of an attempt to obtain informed consent – but it was defective in that it did not provide information of a specific potential risk. The McNair Court held that “VA’s failure to inform a patient about a potential adverse effect did not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment.” Here, the Court held that “McNair does not apply when there is no attempt to obtain consent (as opposed to where defective consent has been obtained).”

Here, the Board made a factual finding that there was no evidence of informed consent in the record – yet attempted to use the McNair rule to excuse the wholesale lack of consent as a “minor deviation.” The Court found that this “would effectively make a finding of a lack of informed consent meaningless because the reasonable person standard from McNair could excuse any failure to document informed consent in almost every situation.” Because the Board made the necessary factual findings – including that there was no attempt to obtain consent – and because it erred in applying the McNair rule to this case – the Court reversed the Board’s decision and remanded for the Board to assign the correct effective date for the award of benefits.

Bryant: Fair process in legacy appeals at the Board

Bryant v. Wilkie, docket no. 18-0092 (Oct. 26, 2020)

HELD: When claimant informs Board of an intent to submit new evidence, Board must wait the full 90 days or until it receives the evidence before it issues an adverse decision.

SUMMARY: Under 38 C.F.R. § 20.1304(a) (2017), an appellant has 90 days following the mailing of notice that an appeal has been certified and transferred to the Board to submit additional evidence. The mailing of the notice that the appeal has been certified and transferred to the Board is the event that triggers the application of § 20.1304(a). Williams v. Wilkie, 32 Vet.App. 46, 51 (2019).

In this case, the veteran informed VA that it would submit additional evidence to the Board once he received the Board’s 90-day letter. The Board sent its 90-day letter to the veteran on September 2,1 2017 - and denied the appeal 70 days later.

The Court held that once the veteran “informed VA that he planned to submit new argument following receipt of the § 20.1304(a) notice letter, implicitly requesting that VA withhold a decision until he had done so, basic fairness obligated the Board to wait 90 days or until he submitted that argument to decide his appeal.” The Court distinguished Mr. Bryant’s case from Williams v. Wilkie, 32 Vet.App. 51 (2019), because the veteran in that case affirmatively stated that he had nothing more to submit.

Burkhart: Recipient of DIC based on service connection under 38 U.S.C. § 1151 is not entitled to home loan guaranty benefits

Burkhart v. Wilkie, docket no. 2019-1667 (Fed. Cir. August 21, 2020)

HELD: “[C]hapter 37 home loan guaranty benefits are available only to, as relevant here, ‘the surviving spouse of any veteran … who died from a service-connected disability’” – and this does not extend to veterans who are service connected under 38 U.S.C. § 1151. 

SUMMARY: Veteran’s surviving spouse received dependents’ benefits (DIC) under 38 U.S.C. § 1151 because the veteran died while in VA’s care. The widow sought a certificate of eligibility (COE) for a VA home loan in 2007, but she never finalized a loan. In 2013, she requested a new COE and was denied because her late husband had no service-connected conditions during his lifetime – and home loan guaranty benefits under Chapter 37 are only available to the surviving spouse of a veteran who died from a service-connected condition. 

She appealed to the CAVC, and the Court held that she was not eligible for a home loan guaranty under the plain language and legislative history of 38 U.S.C. §§ 1151 and 3701. The Court held that 38 U.S.C. § 3721 – the “incontestability provision” – “applies only to the relationship between the Government and lending institutions …, not the Government and COE recipients.” Finally, the Court denied her requests for equitable relief, finding that to grant such relief “would expand the scope of [its] jurisdiction.” 

She appealed to the Federal Circuit, which upheld the CAVC’s opinion on all three points. 

Lang: VA medical records generated within one year of decision are "constructively" in VA's possession and render that decision nonfinal

Lang v. Wilkie, docket no. 2019-1992 (Fed. Cir. August 19, 2020)

HELD: “[A]ll relevant and reasonably connected VA-generated documents are part of the record and, therefore, constructively known by the VA adjudicator. … [R]ecords received in the post-decision context must be evaluated under the same framework applied to records generated prior to a decision. Evidence is constructively received by the VA adjudicator post-decision if it was (1) generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran’s claim.” 

SUMMARY: Vietnam combat veteran (recipient of the Purple Heart and Combat Action Ribbon) was granted service connection, rated 10%, in June 1996. He did not appeal that decision, but he did continue to receive mental health treatment at the VA from July 1996 to June 1997. In 2014, he sought to revise the 1996 decision on the basis of clear and unmistakable error (CUE). The RO and the Board both denied this request. The CAVC rejected his argument that the 1996 RO decision never became final because the VA medical records that were generated within one year of that decision were never reviewed – and that VA never issued a decision as to whether those records were new and material under 38 C.F.R. § 3.156(b). The CAVC acknowledged that a nonfinal decision could not be the subject of CUE – and held that the VA medical records were not constructively received by the VA adjudicator because the veteran “failed to prove that the ‘VA had sufficient knowledge of the VA treatment records . . . to trigger the Board’s duty to make the requested findings.”

The relevant VA regulation in effect at the time stated: “New and material evidence received prior to the expiration of the appeal period … will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b). The Federal Circuit has held that under this regulation, when VA receives new and material evidence it “must provide a determination that is directly responsive to the new submission and …, until it does so, the claim at issue remains open.” Beraud v. McDonald, 766 F.3d 1402, 1408 (Fed. Cir. 2014). 

On appeal to the Federal Circuit, the Secretary first argued that the CAVC did not have jurisdiction to address the veteran’s argument regarding the post-decision VA medical records because he did not raise that issue below. The Federal Circuit rejected that argument, finding that the veteran’s argument was not a new CUE claim. Rather, “[i]t was an argument that no CUE inquiry need occur because the 1996 rating decision is not final.” 

The Federal Circuit then discussed VA’s “long history of considering documents that were not literally before an examiner to be constructively part of a claimant’s record,” citing several “constructive possession” cases, including Bell v. Derwinski, 2 Vet.App. 611, 613 (1992), Bowey v. West, 11 Vet.App. 106, 108-09 (1998), Goodwin v. West, 11 Vet.App. 494, 496 (1998), and Monzingo v. Shinseki, 26 Vet.App. 97, 102 (2012). 

The Court also examined Turner v. Shulkin, 29 Vet.App. 2017 (2018), in which the CAVC held that constructive receipt of VA treatment records “requires knowledge by VA adjudicators … of the existence of those treatment records within the one-year appeal period.” In other words, the Turner Court required a “triggering principle” in order to deem the records constructively in VA’s possession. The Federal Circuit reversed this holding, finding that the CAVC “articulated an erroneous statement of the law when it failed to adequately address Bell and its progeny.” 

The Court reiterated the CAVC’s prior, consistent holding that “in the context of records created prior to a decision, all relevant records and reasonably connected VA-generated documents are part of the record and, therefore, constructively known by the VA adjudicator.” The Court thus held that 

records received in the post-decision context must be evaluated under the same framework applied to records generated prior to a decision. Evidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran’s claim.

The Court added: “There is no requirement that the VA adjudicator have any actual knowledge of the evidence for this principle to apply.” 

Advocacy note: Wow. 

The Court made several other critical statements: (1) “Medical records created by the VAMC as a result of the treatment of a specific veteran are necessarily received by the VA adjudicator of that veteran’s claims because all such records can reasonably be expected to be connected to the veteran’s claims” and (2) “A veteran’s own medical records, generated by the VA itself, are always reasonably related to a veteran’s claim.”

As applied to this case, the Court held that any records created by Mr. Lang’s VA medical facility during the one-year period following the 1996 decision were “in the possession of the VA and constructively received by the VA adjudicator” – and those records rendered the 1996 decision nonfinal until VA makes a decision as to whether those records are new and material under § 3.156(b).

Advocacy note: This case is huge. It will potentially allow veterans to avoid the high burden of establishing CUE in a prior decision IF the veteran received relevant VA medical treatment within one year of that denial. If so, then the veteran could argue, under Lang and § 3.156(b), that the prior denial was nonfinal due to (1) VA’s constructive possession of those relevant records and (2) its failure to make a written determination as to whether those records were “new and material.”

Kisor: To be "relevant," under 38 C.F.R. § 3.156(c)(1), a record must relate to a disputed issue

Kisor v. Wilkie, docket no. 2016-1929 (Fed. Cir. August 12, 2020)

HELD: “[I]n the context of § 3.156(c), the term ‘relevant’ has only ‘one reasonable meaning’ … [and] under the regulation, in order to be ‘relevant’ a record must speak to a matter in issue, in other words, a matter in dispute.” 

SUMMARY: Mr. Kisor filed an initial claim for service connection for PTSD in 1982 and submitted a supporting medical opinion from his Vet Center counselor. VA obtained a negative medical opinion in which the examiner noted the veteran’s participation in “Operation Harvest Moon” in Vietnam, but determined that he did not have PTSD. Because there was no PTSD diagnosis, the RO denied the claim. In 2006, Mr. Kisor submitted a request to reopen and submitted new service records showing his receipt of the Combat Action Ribbon and documenting his participation in Operation Harvest Moon. The RO obtained a favorable medical opinion and granted service connection for PTSD, effective 2006. He appealed for an earlier effective date, which the Board denied, under 38 C.F.R. § 3.156(c), finding that the newly received service records were not “outcome determinative” because they did not relate to the relevant issue of the lack of a PTSD diagnosis.

Mr. Kisor appealed to the CAVC, the Federal Circuit, and the Supreme Court. In the Federal Circuit’s first decision, it found that the term “relevant” in the regulation was ambiguous and deferred to the agency’s reasonable interpretation, which was the Board’s interpretation that required the record to be “outcome determinative.” The Supreme Court held that the Federal Circuit was “too quick to extend Auer [v. Robbins, 519 U.S. 452 (1997)] deference to the Board’s interpretation of ‘relevant’ as it appears in § 3.156(c)(1)” and remanded the appeal back to the Federal Circuit to “decide whether Auer deference ‘applies to the agency interpretation at issue’” and “‘whether the regulation really has more than one reasonable meaning.’” 

On remand, the same three-member panel of the Federal Circuit now determined that the term “relevant” in § 3.156(c)(1) “has only ‘one reasonable meaning,’ the meaning the Board attributed to it.” The Court first found that the term “relevant” in the regulation was “not genuinely ambiguous” – and agreed with the Secretary that “the term has only one reasonable meaning.” The Court held: “To be relevant, a record must address a dispositive issue and therefore affect the outcome of the case.” Because the reason for the prior denial was the lack of a PTSD diagnosis and the new service did not address that issue, the Court determined that they were not “relevant” under § 3.156(c)(1). 

In a thorough and thoughtful dissent, Judge Reyna outlined a strong argument for Mr. Kisor to deploy in appealing this decision. Specifically, Judge Reyna noted that there is nothing in the regulation that requires “relevant” records to “speak to the basis for the VA’s prior decision” or to “affect the outcome.” Rather, in the context of veterans’ benefits, records are relevant if they “help to establish unestablished facts that are necessary for substantiating the veteran’s claim.” 

Judge Reyna pointed out that the initial VA examiner who provided the negative medical opinion described Mr. Kisor’s combat experiences “with palpable skepticism” – something that the majority failed to address. This is particularly relevant to claims for service connection for PTSD because that diagnosis relies on the establishment of a stressor event or events. 

Judge Reyna argued that “when a veterans’ benefit provision is ambiguous on its face, the pro-veteran canon must be weighed alongside the other traditional tools in resolving interpretive doubt.” He stated that “while we have held that the pro-veteran canon applies only to ambiguous statutes and cannot override plain text, that rule does not render the canon a tool of last resort, subordinate to all others.” He added: “The majority wrongly assumes that the Supreme Court’s ‘genuine ambiguity’ criterion for Auer deference applies to the pro-veteran canon” and that if “we can set aside the pro-veteran canon unless and until all other considerations are tied, then the canon is dead because there is no such ‘equipoise’ in legal arguments.”